DISMISSED FOR LACK OF JURISDICTION: November 15, 2017

DISMISSED FOR LACK OF JURISDICTION: November 15, 2017

CBCA 5871

PROS CLEANERS,

Appellant,

v.

DEPARTMENT OF HOMELAND SECURITY,

Respondent.

Bruce Webber, President of Pros Cleaners, Kenner, LA, appearing for Appellant.

Erik Claudio and Hillary J. Freund, Office of Chief Counsel, Federal Emergency

Management Agency, Department of Homeland Security, Washington, DC, counsel for

Respondent.

Before Board Judges SHERIDAN, ZISCHKAU, and SULLIVAN.

SULLIVAN, Board Judge.

When this appeal was filed, the Board directed appellant, Pros Cleaners, to show

cause why its appeal should not be dismissed for lack of jurisdiction because it had not

submitted a claim to the contracting officer prior to filing its appeal. In response, Pros

Cleaners explains that it requested a final decision from the contracting officer, but that

request was made after it filed its notice of appeal. Because the Board does not find a claim

to the contracting officer that preceded the filing of this appeal, the Board dismisses the

appeal for lack of jurisdiction.

CBCA 5871

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On October 3, 2017, the Board docketed an appeal filed by Pros Cleaners arising from

a contract with the Federal Emergency Management Agency (FEMA) to provide unskilled

laborers to support a disaster response effort. In the notice of appeal, Pros Cleaners describes

an exchange of email messages between itself and the FEMA contracting officer regarding

some future work for Pros Cleaners to perform pursuant to its contract and a subsequent

email response from the contracting officer, all dated September 29, 2017.

In a show cause order issued on October 4, 2017, the Board advised the parties that

it did not appear that Pros Cleaners had submitted a claim to the contracting officer.

Responding to the Board’s show cause order, Pros Cleaners submitted a copy of an email

message dated October 13, 2017, to the contracting officer requesting a final decision. In the

October 13 email message, Pros Cleaners states a claim for $600,000 for breach of contract,

and indicates that the claim is an estimate until it can obtain further discovery.

The Board’s jurisdiction to entertain appeals involving contract disputes derives from

the Contract Disputes Act (CDA). 41 U.S.C. §§ 7101-7109 (2012). The CDA requires as

a prerequisite to review by the Board that the contractor, if it is seeking the payment of

money from the Government or adjustment or interpretation of contract terms, have

submitted a written claim to the Government. Id. § 7103(a)(1). Contractor claims in excess

of $100,000 must be certified as to accuracy by a duly authorized representative of the

contractor. Id. § 7103(b)(1).

The Federal Acquisition Regulation (FAR) defines a “claim” as “a written demand

or written assertion by one of the contracting parties seeking, as a matter of right, the

payment of money in a sum certain, the adjustment or interpretation of contract terms, or

other relief arising under or relating to the contract.” 48 CFR 2.101(b)(2) (2016). An

uncertified request for payment in excess of $100,000 “is not a claim under [the CDA] until

certified as required by the statute.” Id. “While a valid claim under the CDA must contain

‘a clear and unequivocal statement that gives the contracting officer adequate notice of the

basis and amount of the claim,’ the claim need not take any particular form or use any

particular wording.” Northrop Grumman Computing Systems, Inc. v. United States, 709 F.3d

1107, 1112 (Fed. Cir. 2013) (quoting Contract Cleaning Maintenance, Inc. v. United States,

811 F.2d 586, 592 (Fed. Cir. 1987)). A claim containing only an estimate or approximation

of the amount that the contractor believes was owed does not satisfy the “sum certain”

requirement of the CDA. Foxy Construction, LLC v. Department of Agriculture, CBCA

5632, 17-1 BCA ¶ 36,687, at 178,628.

Once a claim is submitted, the contracting officer must have an opportunity to respond

to it before judicial review can commence. Under the CDA, “[a] contracting officer shall

issue a decision on any submitted claim of $100,000 or less within 60 days from the

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CBCA 5871

contracting officer’s receipt of a written request from the contractor that a decision be

rendered within that period.” 41 U.S.C. § 7103(f)(1). “Until there is a decision on [the

contractor’s] claim, or the date for issuance passes, [the contractor] cannot maintain an

appeal with the Board or a suit at the Court of Federal Claims on its claim.” Hawk

Contracting Group, LLC v. Department of Veterans Affairs, CBCA 5527, 16-1 BCA

¶ 36,572, at 178,119. An appeal filed before there is a contracting officer’s decision (either

written or through a deemed denial after the statutory deadline has passed) is premature, Fire

Security Systems, Inc. v. General Services Administration, GSBCA 12350, 93-3 BCA

¶ 26,047, at 129,487, and we lack jurisdiction to entertain it. 1-A Construction & Fire, LLP

v. Department of Agriculture, CBCA 2693, 15-1 BCA ¶ 35,913, at 175,564.

Pros Cleaners’ September 29, 2017, email message to the contracting officer was not

a claim because it did not contain a clear statement providing notice of a claim and the

amount of the claim. Pros Cleaners’ subsequent October 13 submission to the contracting

officer does not provide the Board jurisdiction over the current appeal because jurisdiction

must be “established at the time that a notice of appeal is filed.” 1-A Construction, 15-1

BCA at 175,563. “The lack of a claim cannot be cured later.” EnergX, LLC v. Department

of Energy, CBCA 3060, 17-1 BCA ¶ 36,633, at 178,415 (citing Stobil Enterprise v.

Department of Veterans Affairs, CBCA 5246, 16-1 BCA ¶ 36,478, at 177,741, motion for

reconsideration denied, 17-1 BCA ¶ 36,610). As the September 29 email message was not

a claim, the Board finds that it lacks jurisdiction over the current appeal.

Decision

The appeal is DISMISSED FOR LACK OF JURISDICTION.

___________________________

MARIAN E. SULLIVAN

Board Judge

We concur:

___________________________

PATRICIA J. SHERIDAN

Board Judge

___________________________

JONATHAN D. ZISCHKAU

Board Judge